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PETITIONER: ABDU SALAM @ THIYYAN S/O THIYYAN MOHAMMAD,DETENU NO. 962, GE

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT17/04/1990

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PANDIAN, S.R. (J)

CITATION:  1990 AIR 1446            1990 SCR  (2) 517  1990 SCC  (3)  15        JT 1990 (3)    74  1990 SCALE  (1)31

ACT:     Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act--Section 3(D--Detention order--Mere delay in arresting detenu--Whether casts doubt on the  genu- ineness  of  the subjective satisfaction  of  the  detaining authority--Delay in making the detention order and  disposal of representation by the Central Government whether fatal.

HEADNOTE:     The  appellant  after  his Haj pilgrimage  had  been  to Jeddah  and  from Jeddah he landed in Bombay  on  15.9.1987. Thereafter  he  boarded a bus to go to his native  place  in Kerala. On 17.9.1987, the Custom authorities intercepted the bus  wherein  the  petitioner  was  travelling  and  in  the presence of the panch witnesses, searched his person and the chappals worn by him. On opening the chappals about 13  gold ingots  with foreign markings were found and they were  duly recovered. The appellant confessed that he was introduced to a person who promised to give him remuneration for  carrying the  gold  to India and that is how he  brought  those  gold biscuits. The detaining authority passed the detention order against the appellant on 21.9.1988, and grounds of detention were  served on him within time and he was informed that  if he so desired he could make a representation to the Advisory Board,  and also that he could make a representation to  the detaining authority or the Central Government. The appellant challenged his detention by means of a writ petition in  the High Court and the same having been dismissed, he has  filed this  appeal  after obtaining special leave.  The  appellant urged: (i) that the delay in making the detention order  and the disposal of his representation by the Central Government are fatal and violative of Article 22(5) of the Constitution of India; and (ii) that the delay in arresting him  pursuant to  the detention order casts a doubt on the genuineness  of the subjective satisfaction of the detaining authority. Dismissing the appeal, this Court, HELD:  Delay  ipso facto in passing an  order  of  detention after an 518 incident is not fatal to the detention of a person. In  this case  the delay by itself does not invalidate the  detention

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but even otherwise it has been reasonably explained. [524G]     From the explanation it can be seen that the representa- tion  was  considered  most expeditiously and  there  is  no "negligence or callous inaction or avoidable red-tapism’  ’. [523C]     It  can  therefore  be seen that on the  mere  delay  in arresting the detenu pursuant to the order of detention  the subjective satisfaction of the detaining authority cannot be held  to be not genuine. Each case depends on its own  facts and circumstances. The Court has to see whether the delay is explained  reasonably.  In the instant case, this  Court  is satisfied  with the explanation for the delay  in  arresting the detenu. [525G-H]     Khudiram Das v. The State of West Bengal & Ors.,  [1975] 2  S.C.C.  81; Tara Chand v. State of  Rajasthan,  [1980]  2 S.C.C.  321; Shyam Ambalal Siroya v. Union of India &  Ors., [1980] 2 S.C.R. 1078; Sabir Ahmed v. Union of India &  Ors., [1980]  3 SCR 738; Rama Dhondu Borade v.V.K. Saraf,  Commis- sioner  of  Police & Ors., [1989] 3 S.C.C. 173;  T.A.  Abdul Rahman  v.  State  of Kerala & Ors., [1989]  4  S.C.C.  741; Lakshman Khatik v. The State of West Bengal, [1974] 4 S.C.C. 1; Rajendrakumar Natvarlal Shah v. State of Gujarat &  Ors., [1988] 3 S.C.C. 153; Yogendra Murari v. State of UP., [1988] 4 S.C.C. 558; Hemlata Kantilal Shah v. State of Maharashtra, [1981] 4 S.C.C. 647 and SK. Serajul v. State of West Bengal, [1975] 2 S.C.C. 7a, referred to.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  27 1 of 1990.     From the Judgment and Order dated 16.1.1989 of the Delhi High Court in Criminal Writ No. 34 of 1989. K.V. Vishwanathan and S.R. Setia for the Appellant.     T.T. Kunhikanna, Udai Lalit and P. Parmeshwaran for  the Respondents. The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. Leave granted. 519     This  is an appeal seeking a writ of habeas corpus.  The appellant  who has been detained under Section  3(1)(i)  and 3(1)(iii)  of  the COFEPOSA Act, 1974,  has  challenged  the detention  order.  The appellant is a  native  of  Panakkad, Malapuram  District in Kerala and had been to  Jeddah  after his  Haj pilgrimage and from Jeddah he landed in  Bombay  on 15.9.87. Then he started by a bus to go to his native place. On  17.9.87 the Customs Officials intercepted the  bus  near Thiruvannoor  and  in  the presence of  panch  witnesses,  a search was conducted on the person of the appellant and  the chappals  worn  by  him were inspected and  on  their  being opened  up  about 13 gold ingots with foreign  marking  were found and they were duly recovered. Further some incriminat- ing  documents were also recovered. The gold was  valued  at Rs.4,64,951 and it was found to be smuggled gold. The appel- lant was interrogated by the Superintendent of Customs and a statement  of the appellant was recorded. He confessed  that he  was  introduced  to a person who promised  to  give  him remuneration  provided  he  carries the gold  to  India  and appellant  agreed and carried these gold biscuits.  Criminal proceedings were initiated. However, the detaining  authori- ty, the Home Secretary to Government of Kerala being  satis- fied  passed the detention order dated 21.9.88  against  the appellant  with  a  view to preventing  him  from  smuggling activities. The grounds also were served within time and  in

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the  grounds all the above mentioned details are  mentioned. In  the  grounds the appellant also is informed that  if  he desires  to make a representation to the Advisory Board,  he may  address it to the Chairman, Advisory Board and that  he can also make a representation to the detaining authority or the  Central  Government. Questioning the same  the  present appeal is filed.     It  is  submitted that the representation  was  made  on 27.9.88 to the Central Government and it was disposed of  on 2.11.88.  Therefore there was enormous delay by the  Central Government  in  rejecting the representation and  the  delay amounts to violation of Article 22(5) of the Constitution of India. The next submission is that though the alleged  smug- gling  of gold is said to have been taken place on  17.9.87, the detention order was passed on 21.5.88 i.e. after a lapse of eight months and that too it was a solitary instance  and because of the delay, the same has become stale and there is no other material to establish any nexus or live  connection between the alleged date of smuggling and the date of deten- tion.  The  next submission is that there was delay  in  the execution of the detention order which was executed only  on 6.8.88 though passed on 21.5.88 and that there is no allega- tion that the appellant was absconding. It is also submitted that the appellant was not given an effective opportunity to represent his case before the 520 Advisory  Board inasmuch as the appellant was not  permitted to be represented by an advocate or by his next friend.     In the counter-affidavit it is stated that the Collector of  Customs  furnished proposals for the  detention  of  the appellant on 24.3.1988 and the detention order was passed on 21.5.1988  and the appellant was detained on  6.8.1988.  The appellant  made a representation to the detaining  authority on 27.9.1988 and it was rejected by the State Government  on 1.10.1988  and the Central Government rejected the  same  on 2.11.1988. Therefore in the counter-affidavit it is admitted that there is a delay of one month and five days in  consid- ering  and rejecting the representation by the Central  Gov- ernment.     It  can  be  seen that so far as  the  State  Government namely  the  detaining authority is concerned, there  is  no delay  but the submission is that the delay in disposing  of the representation by the Central Government also is  fatal. Article  22(5) of the Constitution of India lays  down  that when  any person is detained in pursuance of an  order  made under  any law providing for preventive detention,  the  au- thority making the order shall, as soon as may be,  communi- cate to such person the grounds on which the order has  been made and shall afford him the earliest opportunity of making a representation against the order.     It  is well-settled that this Clause confers a  valuable fight  upon  the detenu to make a  representation  and  also mandates that the detaining authority should dispose of  the same without delay. Therefore the right under this Clause is two-fold,  namely that the authority making the  order  must communicate to the detenu the grounds on which the order has been  made, as soon as the order is made and  secondly  that the detenu must also be afforded the earliest opportunity of making a representation against the order.     Article 22(5) itself does not say to whom the  represen- tation  is made or who will consider the representation.  By virtue of provisions of the statute under which he has  been detained,  the appropriate Government is legally obliged  to comply  with  these requirements. It is  obligatory  on  the appropriate Government to consider the detenu’s  representa-

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tion separate from the consideration of the detenu’s case by the Advisory Board. But what the learned counsel submits  is that  the Central Government which has the power  to  revoke the  detention order passed by the State authority, is  also under  legal  obligation to dispose  of  the  representation without  delay. Learned counsel relied on some of the  deci- sions of this Court. In Khudiram Das v. The State of 521 West Bengal and Others, [1975] 2 SCC 81 this Court held that one of the basic requirement of clause (5) of Article 22  is that  the authority making the order must afford the  detenu the earliest opportunity of making a representation  against the  order and this requirement will be  ineffective  unless there  is a corresponding obligation to consider the  repre- sentation of the detenu as early as possible. It may not  be necessary for us to refer to all those decisions which  deal with  the  delay  caused by the  appropriate  Government  in considering  the representation inasmuch as in  the  instant case there is no delay in considering the representation  by the State Government which is the detaining authority.   Section 11 of the COFEPOSA Act, 1974 deals with the  revo- cation of detention orders and under Section 11(b) the  Cen- tral Government may, at any time, revoke or modify an  order made  by the State Government. Though strictly speaking  the Central Government is not the detaining authority within the meaning of Article 22(5) yet they are under legal obligation to  dispose of the representation as early as  possible  but the question is whether such delay by the Central Government also  should be subjected to such a rigorous scrutiny as  is done  in the case of a delay caused by the appropriate  Gov- ernment. namely the detaining authority.     In  Tara Chand v. The State of Rajasthan, [1980]  2  SCC 321, this Court held that: "Once a representation is made to the Central Government, it is duty bound to consider the same in order to exercise  its discretion  either in rejecting or accepting it.if there  is inordinate  delay  in considering  the  representation  that would clearly amount to violation of Article 22(5) so as  to render the detention unconstitutional and void."     In  Shyam  Ambalal Siroya v. Union of  India  and  Ors., [1980] 2 SCR 1078 it is held that: "The power of the Central Government to revoke the order  of detention implies that the detenu can make a  representation for  exercise of that power. Any petition for revocation  of an order of detention should be dealt with reasonable  expe- dition  .....  It may be permissible for the Central Govern- ment  to take reasonable time for disposing  any  revocation petition. But it would not be justified in 522 ignoring the representation for revocation of the  detention as a statutory duty is cast upon the Central Government.  It is  necessary that the Government should apply its mind  and either  revoke the order of detention or dismiss  the  peti- tion, declining to order for revocation."     In Sabir Ahmed v. Union of India and Ors., [1980] 3  SCR 738 dealing with the power of the revocation of the  Central Government it is observed that such power is intended to  be an additional check or safeguard against the improper  exer- cise of its power of detention by the detaining authority or the State Government and that the Central Government  should consider  the same with reasonable expedition and that  what is  reasonable expedition depends upon the circumstances  of the particular case. No hard and fast rule as to the measure of  reasonable  time can be laid down. It is  also  observed that  it  certainly does not cover the delay due  to  negli-

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gence,  callous  inaction, avoidable red tapism  and  unduly protracted procrastination.     In  Sabir Ahmed’s case as well as in Shyam  Ambalal  Si- roya’s  case  the representation made by the detenu  to  the Central Government has been ignored and left unattended  for a period of about four months and under those  circumstances it was held that there was violation of Article 22(5).     In  Rama  Dhondu Borade v.V.K.  Saraf,  Commissioner  of Police and Others, [1989] 3 SCC 173 the detenu made a repre- sentation  to  the Central Government on 26.9.1988  and  the decision of the Central Government rejecting the representa- tion  was communicated to the appellant on  31.10.1988.  The explanation  submitted  by the Central  Government  was  not accepted on the ground that it is not satisfactory. In  T.A. Abdul Rahman v. State of Kerala and Others, [1989] 4 SCC 741 there  was a delay of 72 days and it was observed  that  the representation  of the detenu has not been given prompt  and expeditious  consideration  and was allowed to  lie  without being properly attended to.     Bearing these principles in mind we shall examine wheth- er  the Central Government has expeditiously considered  the representation or not. We have already noted that the repre- sentation was made on 27.9.88 and disposed of by the Central Government on 2.11.88, i.e. within a month and five days. In the counter-affidavit filed on behalf of the Central Govern- ment it is stated that the representation dated 27.9.88  was received in the COFEPOSA Section of the Ministry of  Finance on  10.10.88 and the representation was in Malayalam. It  is also 523 stated  that there were some allegations regarding the  non- placement  of certain documents and non-supply  of  certain, documents to him. Therefore a copy of the representation was sent to the sponsoring authority i.e. Collector of  Customs, Cochin on that very day and the comments from the  Collector of  Customs,  Cochin  dated 25.10.88 were  received  in  the COFEPOSA Section on 27.10.88 and that the Additional  Secre- tary examined them and with his comments, they were forward- ed  to the Minister of State for Revenue on 31.10.88,  since 29th  and 30th October, 1988 were holidays. The Minister  of State for Revenue with this comments forwarded the represen- tation  on the same day i.e. 31.10.88 to the Finance  Minis- ter. The Finance Minister considered and rejected the repre- sentation on 1.11.88 and the file was received in the Office on  2.11.88 and on the same day, a memorandum rejecting  the representation was sent to the detenu. From the  explanation it  can be seen that the representation was considered  most expeditiously  and there is no "negligence or callous  inac- tion  or  avoidable red-tapism". For these  reasons  we  are unable to accept this contention of the learned counsel.     The  next submission of the learned counsel is that  the date  of  search  was 17.9.87 and the  detention  order  was passed  on 21.5.88 after a long time and therefore there  is no  nexus  between the alleged incident  and  the  detention order and therefore there is no genuine satisfaction on  the part of the detaining authority. The learned counsel submits that  there  was  no live existing  connection  between  the incident and the detention. In Lakshman Khatik v. The  State of  West  Bengal, [1974] 4 SCC 1 it is  observed  that  mere delay in passing a detention order is not conclusive but the type  of  grounds given have to be seen  and  then  consider whether  such  grounds could really weigh  with  an  officer after  such  delay in coming to the conclusion that  it  was necessary  to detain the detenu. In Rajendrakumar  Natvarlal Shah v. State of Gujarat and Others, [1988] 3 SCC 153. it is

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held  that the mere delay in passing the detention order  is not fatal unless the court finds that the grounds are  stale or  illusory  or  that there is no real  nexus  between  the grounds and the detention. In Abdul Rahman’s case seizure of the  gold biscuits was on 30.11.86 and the  detention  order was  passed 11 months thereafter. On the ground  that  there was no satisfactory explanation for this undue, unreasonable and  unexplained delay, it was held that the delay throws  a considerable  doubt  on the genuineness  of  the  subjective satisfaction of the detaining authority.     In the counter-affidavit, in the instant case, filed  on behalf of the detaining authority it is stated that the case records relating to the 524 petitioner  were  received at the office of  the  sponsoring authority  on 1.2.88 and they were processed in  the  Office and  the show-cause notice under the Customs Act was  issued on 9.2.88 and the proposals were sent for COFEPOSA action on 24.3.88  and they were received by the State  Government  on 2.4.88. The matter was considered by the Screening Committee which met on 28.4.88 and thereafter submitted the  proposals to the detaining authority. On 2.5.88 the detaining authori- ty  ordered to ascertain the reasons for the delay in  spon- soring the case and accordingly the sponsoring authority  at Cochin  was addressed on 2.5.88. He was reminded  on  7.5.88 and 12.5.88. His reply was received on 16.5.88 and  thereaf- ter the order was passed on 21.5.88. In our view, the  delay has been reasonably explained. The courts have not laid down that on mere such delay the detention has to be struck down. In Yogendra Murari v. State of U.P., [1988] 4 SCC 558, it is held that: "It is not right to assume that an order of detention has to be mechanically struck down if passed after some delay ..... It is necessary to consider the circumstances in each  indi- vidual case to find out whether the delay has been satisfac- torily explained or not." That apart, we are unable to agree with the learned  counsel that  because of this delay the necessary nexus got  severed and  that  the grounds have become stale  and  illusory.  In appreciating  such a contention. the Court also has to  bear in mind the nature of the prejudicial activities indulged by the detenu and the likelihood of his repeating the same.  It is  this potentiality in him that has to be taken into  con- sideration  and if the detaining authority is  satisfied  on the  available material then on mere delay as long as it  is not  highly  unreasonable  and undue the  Court  should  not normally strike down the detention on that ground. In Hemla- ta  Kantilal Shah v. State of Maharashtra, [1981] 4 SCC  647 it  is  held that delay ipso facto in passing  an  order  of detention after an incident is not fatal to the detention of a person. For these reasons we are of the view that in  this case  the delay by itself does not invalidate the  detention but even otherwise it has been reasonably explained.     Yet another ground urged by the learned counsel is  that there was delay in arresting the detenu after the  detention order  was passed and therefore there is no  genuineness  in the  detention order. In the counter-affidavit it is  stated that  after the detention order was passed, it was  sent  to the Superintendent of Police, Malappuram on 23.5.88 for 525 immediate  execution and they were passed on to  Circle  In- spector,  Malappuram. On 29.6.88, it was reported  that  the Circle Inspector had made due enquiries but the detenu could not be apprehended. Thereupon a special squad was deputed as per-the  directions  of  the Superintendent  of  Police  and

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thereafter he was detained on 6.8.88. It is further  submit- ted in the counter-affidavit that the delay in execution  of the  order is caused due to detenu’s deliberate  attempt  to make himself scarce. That apart there is no decision where a court has gone to the extent of holding that a mere delay in arresting the accused renders the detention invalid. In  the instant  case,  the delay, if at all, is  only  about  2/1/2 months and the explanation offered for the delay is reasona- ble. The learned counsel, however, relied on Abdul  Rahman’s case. In that case the detention order was passed on 7.10.87 and the detenu was arrested on 18.1.88. The court found that there  was  no reasonable explanation for the delay  in  the counter affidavit at all. This ground was taken into consid- eration  alongwith the other important grounds  in  quashing the  detention.  In  SK. Serajul v. State  of  West  Bengal, [1975] 2 SCC 78 it is observed that: "There was delay, both at the stage of passing the order  of detention  and  in  arresting him, and  this  delay,  unless satisfactorily explained, would throw considerable doubt  on the genuineness of the subjective satisfaction... But  this  must not be misunderstood to mean  that  whenever there is delay in making an order of detention or in  arrest ing the detenu pursuant to the order of detention, the sub-. jective satisfaction of the detaining authority must be held to  be not genuine or colourable. Each case must  depend  on its  own  peculiar facts and  circumstances.  The  detaining authority may have a reasonable explanation for the and  that might be sufficient to dispel the  inference  that its satisfaction was not genuine." It can therefore be seen that on the mere delay in arresting me detenu; pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine. Each case. depends on its own facts and circum- stances. The Court has to see whether the delay is explained reasonably. As mentioned above, in the instant case, we  are satisfied  with the explanation for the delay  in  arresting the  detenu. Therefore this contention is also liable to  be rejected. For all the above-mentioned reasons, the appeal is dismissed. Y. Lal                                     Appeal dismissed. 526